The opinion
Filed 8/28/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
JOSEPH MAYOR,
Petitioner,
v.
WORKERS’ A169465
COMPENSATION APPEALS
BOARD, (WCAB Case No.
ADJ10036954)
Respondent;
ROSS VALLEY SANITATION
DISTRICT,
Real Party in Interest.
Joseph Mayor seeks a writ of mandate directing the
Workers’ Compensation Appeals Board (Board) to rescind its
order granting Ross Valley Sanitation District’s (Ross Valley)
petition for reconsideration of an award of permanent disability.
When Ross Valley’s petition was before the Board, former section
5909 of the Labor Code1 (Stats. 1992, ch. 1226, § 5, p. 5766)
(former section 5909) stated, “A petition for reconsideration is
deemed to have been denied by the appeals board unless it is
acted upon within 60 days from the date of filing.” The Board
issued its order more than 60 days after Ross Valley filed its
1 Undesignated statutory citations are to the Labor Code.
1
petition. We agree with Mayor and the recent decision in Zurich
American Ins. Co. v. Workers’ Comp. Appeals Bd. (2023)
97 Cal.App.5th 1213 (Zurich) that the Board’s action after 60
days exceeded its jurisdiction. While this appeal was pending,
the Legislature amended section 5909 so that the 60-day deadline
now starts when the Board receives the case file, not when the
petition for reconsideration is filed. This amendment at once
implicitly confirms Zurich’s interpretation of the former statute
and puts to rest the Board’s concerns about the consequences of
that interpretation for the future. We will therefore grant
Mayor’s petition and issue the requested writ of mandate.
BACKGROUND
On March 2, 2023, a workers’ compensation administrative
law judge (WCJ) issued an award of total permanent disability in
favor of Mayor based on an industrial injury he suffered in
December 2013 during his employment by Ross Valley.
Ross Valley filed a petition for reconsideration with the
Board on March 23, 2023. The Board’s electronic filing system,
Electronic Adjudication Management System (EAMS), showed it
was received the same day. Mayor filed his answer to the
petition on April 3, 2023.
At the time, former section 5909 stated, “A petition for
reconsideration is deemed to have been denied by the appeals
board unless it is acted upon within 60 days from the date of
filing.” (Stats. 1992, ch. 1226, § 5, p. 5766.) On June 5, 2023, 74
days after Ross Valley filed its petition, Ross Valley wrote to the
2
Board, inquiring about the status of its petition and noting that it
had been more than 60 days since Ross Valley had filed it.
On July 19, 2023, Mayor requested a hearing to enforce the
WCJ’s award.
On August 14, 2023, 144 days after Ross Valley filed its
petition, the Board issued a document titled, “Opinion and Order
Granting Petition for Reconsideration.”2 Attached to the Board’s
order granting reconsideration was a document titled, “Notice
Pursuant to Shipley v. Workers’ Comp. Appeals Bd. (1992)
7 Cal.App.4th 1104 [57 Cal.Comp.Cases 493].” This notice states,
“Reconsideration has been sought with regard to the decision
filed on March 2, 2023. Labor Code section 5909 provides that a
petition for reconsideration is deemed denied unless the Workers’
Compensation Appeals Board (Appeals Board) acts on the
petition within 60 days of filing. (Lab. Code, § 5909.) The
petition(s) was filed on March 23, 2023. The Appeals Board first
received notice of the petition(s) on or about June 15, 2023.
(Shipley v. Workers’ Comp. Appeals Bd. (1992) 7 Cal.App.4th
1104 [57 Cal.Comp.Cases 493] [allowing tolling as a matter of
due process.].) The Opinion and Order Granting Petition for
Reconsideration filed simultaneously with this Notice may be
considered timely if issued within 60 days of the Appeals Board
receiving notice of the petition(s). (Id.)”
2 We have omitted capitalization and boldface from all
quotations from the board’s orders in this case.
3
Mayor wrote to the Board in September 2023, asking it to
clarify why it first received notice of the petition on June 15,
2023, when Ross Valley filed it on March 23, 2023.
After receiving no reply, Mayor filed his petition for writ of
mandate on January 9, 2024, asking us to direct the Board to
rescind its order granting reconsideration because former section
5909 dictated that the Board lost jurisdiction over the matter 60
days after Ross Valley filed its petition for reconsideration. On
January 26, 2024, the Board issued a document titled, “Opinion
and Order Granting Petition for Reconsideration and Decision
After Reconsideration.” The Board then reconsidered and
rescinded that order and issued a revised version on February 2,
2024. The revised order stated that the Board was rescinding the
WCJ’s award and returning the matter to the trial level for
further proceedings.
According to the revised order, “due to an administrative
irregularity” that was not the fault of either party, the Board did
not receive Ross Valley’s petition for reconsideration until more
than 60 days after the date Ross Valley filed it, March 23, 2023.
EAMS, which the Board does not control, does not give the Board
direct notification of filings.3 Instead, the staff of the district
3 According to a recent Board decision in another case, the
Administrative Director of the Division of Workers’
Compensation is responsible for the EAMS software. (Scheuing
v. Lawrence Livermore National Laboratory (2024)
89 Cal.Comp.Cases 325, 332; see also § 111 [Board “shall exercise
all judicial powers vested in it under this code. In all other
respects, the Division of Workers’ Compensation is under the
control of the administrative director”].)
4
office must manually notify the Board that a party is requesting
reconsideration and transmit the case to the Board. Mistakes
and delays from “normal human error” can thwart the manual
transmission of information from the district offices to the Board.
When this occurred, the Board’s practice was to treat the 60-day
deadline in former section 5909 as tolled and issue a decision on
the petition within 60 days of receipt of the petition. The Board’s
order stated that Ross Valley secured a statutory right to
reconsideration upon timely filing its petition for reconsideration,
so its conduct “is not and should not be at issue.”
We issued an order to show cause why Mayor’s petition
should not be granted. The Board attached to one of its filings a
copy of its February 2024 order.
While Mayor’s petition was pending in this court, the
Legislature enacted Assembly Bill No. 171 (2023–2024 Reg.
Sess.) (Assembly Bill 171), which amended former section 5909.
(Stats. 2024, ch. 52, § 27.) Section 5909 now states, “(a) A
petition for reconsideration is deemed to have been denied by the
appeals board unless it is acted upon within 60 days from the
date a trial judge transmits a case to the appeals board. [¶] (b)(1)
When a trial judge transmits a case to the appeals board, the
trial judge shall provide notice to the parties of the case and the
appeals board. [¶] (2) For purposes of paragraph (1), service of the
accompanying report, pursuant to subdivision (b) of Section 5900,
shall constitute providing notice. [¶] (c) This section shall remain
in effect only until July 1, 2026, and as of that date is repealed.”
5
The former version of section 5909 is currently set to be
reinstated on July 1, 2026. (Stats. 2024, ch. 52, § 28.)4
DISCUSSION
I. Workers’ compensation system and standard of
review
The Board is a court of limited jurisdiction authorized by
the California Constitution to exercise a portion of the state’s
judicial power. (Cal. Const., art. XIV, § 4; Fremont Indemnity Co.
v. Workers’ Comp. Appeals Bd. (1984) 153 Cal.App.3d 965, 970;
Kaiser Co. v. Industrial Acc. Commission (1952) 109 Cal.App.2d
54, 57–58.) The Board authorizes and empowers WCJs to hear
and decide cases. (§§ 27, 5309, 5310, 5313; Cal. Code Regs, tit. 8,
§ 10330.) “Orders, findings, decisions and awards issued by a
workers’ compensation judge shall be the orders, findings,
decisions and awards of the Workers’ Compensation Appeals
Board unless reconsideration is granted.” (Cal. Code Regs., tit. 8,
§ 10330.)
Within 20 days of an order or award by a WCJ, an
aggrieved person may petition the Board for reconsideration.
(§§ 5900, subd. (a), 5903.) Section 5903 specifies the following
exclusive grounds for a petition for reconsideration: (1) the WCJ
acted without or in excess of its powers; (2) the order or award
was procured by fraud; (3) the evidence does not justify the
findings of fact; (4) the petitioner has discovered new evidence
that could not have been discovered and produced earlier; and
4 We invited the parties to submit supplemental briefing
addressing the impact of the amendment.
6
(5) the findings of fact do not support the order or award.
(§ 5903, subds. (a)–(e).) The Board can also grant reconsideration
on its own motion within 60 days of the order or award. (§ 5900,
subd. (b).)
Within 15 days of the filing of a petition for
reconsideration, the WCJ must either prepare a report and
recommendation on the petition, rescind the award or order and
initiate further proceedings, or rescind the award or order and
issue an amended award or order. (Cal. Code Regs., tit. 8,
§ 10961.)
The Board’s ruling on a petition for reconsideration, as well
as any Board decision following reconsideration, must be in
writing and specify the evidence relied upon and the reasons for
the decision. (§ 5908.5.) If the Board grants reconsideration of a
WCJ’s order or award, it can decide the matter on the existing
record while resolving conflicts in the evidence and making its
own credibility determinations, or it can return the case to the
WCJ for further proceedings. (§ 5907; Rubalcava v. Workers’
Comp. Appeals Bd. (1990) 220 Cal.App.3d 901, 908.)
Section 5950 allows anyone affected by an order of the
Board to file a petition for writ of review in the Court of Appeal or
Supreme Court within 45 days of the denial of a petition for
reconsideration or the filing of a decision after reconsideration.
Judicial review “is limited to determining whether the Board
acted ‘without or in excess of its powers’ and whether its decision
was unreasonable, not supported by substantial evidence, or
procured by fraud.” (Department of Corrections & Rehabilitation
7
v. Workers’ Comp. Appeals Bd. (2018) 27 Cal.App.5th 607, 617;
§ 5952.) A court is not permitted “to hold a trial de novo, to take
evidence, or to exercise its independent judgment on the
evidence.” (§ 5952.) “The findings and conclusions of the appeals
board on questions of fact are conclusive and final and are not
subject to review.” (§ 5953.)
“Unless clearly erroneous, the Board’s interpretation of
workers’ compensation laws is entitled to great weight.
[Citation.] ‘Nevertheless, issues of statutory interpretation and
questions of law are subject to our independent review, and we
need not defer to the [Board’s] legal determinations where they
are contrary to the plain meaning of the statute or prevailing
case law.’ [Citation.] When the statutory language is clear and
unambiguous, there is no room for the Board’s interpretation.”
(Department of Corrections & Rehabilitation v. Workers’ Comp.
Appeals Bd., supra, 27 Cal.App.5th at p. 617.)
II. The Board’s Jurisdiction to Order Reconsideration
A. Legal background and Zurich
Mayor argues that when the Board failed to act on Ross
Valley’s petition for 60 days, former section 5909 dictated that it
was denied by operation of law. According to Mayor, the Board’s
attempt to grant the petition on August 14, 2023, 144 days after
it was filed, was therefore in excess of its jurisdiction and must be
set aside. Zurich recently accepted this argument in factual and
procedural circumstances essentially identical to those here, and
Mayor urges us to follow it. The Board, conversely, seeks to
minimize, distinguish, or refute Zurich’s reasoning on a variety of
8
grounds. Because Zurich is central to the parties’ arguments, we
begin by reviewing it and the legal principles it applied.
Statutory deadlines are either mandatory or directory.
(Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 340
(Kabran).) “Whether a requirement is mandatory or directory is
determined largely by its effect: ‘If the failure to comply with a
particular procedural step does not invalidate the action
ultimately taken, . . . the procedural requirement is referred to as
“directory.” If, on the other hand, it is concluded that
noncompliance does invalidate subsequent action, the
requirement is deemed “mandatory.” ’ ” (Ibid.; People v. Allen
(2007) 42 Cal.4th 91, 101 [directory statute can be enforced in
ways other than invalidation of noncompliant action, “ ‘such as
injunctive relief, mandamus, or monetary damages’ ”].)
Mandatory deadlines can be further classified depending on
how a violation of the deadline affects a court’s jurisdiction.
Violations of some statutes affect a court’s fundamental
jurisdiction in the sense of entirely depriving the court of power
to hear or determine the case or authority over the subject
matter. (Law Finance Group, LLC v. Key (2023) 14 Cal.5th 932,
949; see Zurich, supra, 97 Cal.App.5th at pp. 1226–1227.)
Actions in violation of these statutes are void and can be
challenged for the first time on appeal or at any time by collateral
attack. (Kabran, supra, 2 Cal.5th at p. 339.) Equitable doctrines
cannot excuse the failure to comply with such deadlines. (Law
Finance Group, at p. 950.) Other mandatory deadlines are
jurisdictional in the sense that an action in violation can be set
9
aside, but the action “is ‘valid until set aside, and parties may be
precluded from setting it aside by such things as waiver,
estoppel, or the passage of time.’ ” (Kabran, at p. 340; accord,
Law Finance Group, at pp. 951–952.) Because of the harsh
consequences of depriving a court of fundamental jurisdiction, the
courts presume that statutes do not limit courts’ fundamental
jurisdiction absent a clear indication of legislative intent. (Law
Finance Group, at p. 950.)
In Zurich, the Board granted a petition for reconsideration
more than nine months after it was filed. (Zurich, supra,
97 Cal.App.5th at p. 1224.) The opposing party filed a petition
for writ of mandate challenging the order on jurisdictional
grounds. (Id. at p. 1226.) Zurich first concluded that the
litigant’s jurisdictional argument was “the proper subject of writ
relief because the question involves statutory interpretation, not
administrative discretion.” (Ibid.) Zurich also noted that the
petition did not challenge the merits of the Board’s decision to
grant reconsideration, merely its authority to rule on the petition
once it was deemed denied under former section 5909. (Zurich,
at p. 1226.) In Zurich’s view, the party opposing reconsideration
“lacked an adequate remedy at law if it had to wait for the
conclusion of a void procedure to seek relief in this court.” (Ibid.)
On the merits, Zurich held that former section 5909 was
mandatory and actions in violation of it were in excess of the
Board’s jurisdiction because it established a 60-day deadline and
imposed the consequence that if the Board did not act by the
deadline the petition was “deemed to have been denied.” (Former
10
§ 5909; Zurich, supra, 97 Cal.App.5th at pp. 1230–1231.) Zurich
noted that the Supreme Court had held that the Legislature’s
imposition of a consequence or penalty indicates an intent to
make a deadline jurisdictional in either sense of the term. (Id. at
p. 1231, citing Kabran, supra, 2 Cal.5th at p. 344.)
Zurich also relied on the California Constitution’s
statement of the purpose of the workers’ compensation system,
which is to “accomplish substantial justice in all cases
expeditiously, inexpensively, and without incumbrance of any
character.” (Cal. Const., art. XIV, § 4; see Zurich, supra,
97 Cal.App.5th at p. 1232.) The Zurich court found that a report
by the Board’s predecessor entity, the Industrial Accident
Commission, shortly after the creation of the current workers’
compensation system, elaborated on this purpose. (Zurich, at
pp. 1233–1234.) That report explained, “ ‘It is better for the state
and for the people of the state that what may be termed “average
justice” shall be speedily and inexpensively administered than
exact justice shall be striven for at a cost that, in many cases,
would consume the entire amount involved and leave the
applicant indebted for costs and expenses besides. [¶] . . . In
short, it is the purpose of the Commission to afford an object
lesson as to how to determine issues of minor consequence with
reasonable certainty and without delay or burdensome
expenditure.” (Ibid.) From these authorities, Zurich concluded
the Legislature established former section 5909 to effectuate the
purpose of ensuring that workers’ compensation cases do not
consume too much time or leave claimants in debt. (Zurich, at
11
pp. 1234–1235.) Zurich also noted that if former section 5909 did
not terminate the Board’s jurisdiction, aggrieved parties would
not know when the 45-day deadline in section 5950 began to run
for filing a petition for judicial review. (Id. at p. 1235.)
Zurich recognized that the Board relied on Shipley v.
Workers’ Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104 (Shipley).
(Zurich, supra, 97 Cal.App.5th at p. 1237.) In that case, a
petitioner timely filed a petition for reconsideration and was told
before the 60-day deadline had passed that the file had been
misplaced. (Shipley, supra, 7 Cal.App.4th at p. 1106.) The
petitioner made multiple inquiries over the course of many
months and was eventually allowed to reconstruct a duplicate of
the file. (Id. at pp. 1106–1107.) After the reconstructed file was
sent to the Board’s rehearing unit and over a year after the
petitioner filed the petition for reconsideration, the Board issued
an order stating the petition had been denied by operation of law
under former section 5909. (Shipley, at p. 1107.)
Shipley reversed this denial, explaining that while the
language of former section 5909 “appears mandatory and
jurisdictional, the time periods must be based on a presumption
that a claimant’s file will be available to the board; any other
result deprives a claimant of due process and the right to a
review by the board.” (Shipley, supra, 7 Cal.App.4th at p. 1107.)
The court emphasized that the petitioner’s file was lost “through
no fault of his own and due to circumstances entirely beyond his
control.” (Ibid.) The court did not believe the Legislature wrote
former section 5909 to cover such gaffes. (Shipley, at p. 1107.)
12
Shipley noted that the petitioner had made “inquiries and
received reassurances from the board that his petition would be
considered either after his file was found or after he
reconstructed a duplicate file” and concluded that “[a]llowing the
board to subsequently deny the petition by operation of law under
[former] section 5909 makes no sense.” (Id. at p. 1108.) The
court concluded the petitioner’s statutory right to reconsideration
by the Board could not “be denied him without due process. Any
other result offends not only elementary due process principles
but common sensibilities. [The petitioner] is entitled to the
board’s review of his petition and its decision on its merits.”
(Ibid.)
Zurich disagreed with Shipley that a petitioner had a due
process right to reconsideration by the Board after 60 days, given
former section 5909’s clear language and the fact that a
petitioner could still seek judicial review after the denial of a
petition by operation of law. (Zurich, supra, 97 Cal.App.5th at
p. 1237.) Zurich concluded that even if Shipley could be read
more narrowly to allow a form of equitable tolling, it did not
support the Board’s contention that it could extend the former
section 5909 deadline “any time the Board fails to act due to
deficiencies in the administrative process.” (Zurich, at p. 1237.)
Zurich contrasted the facts before it with the facts of Shipley, in
that the petitioner in Zurich had made no inquiries of the Board
and was not lulled or deceived like in Shipley. (Id. at pp. 1238–
1239.) Zurich also emphasized that unlike in Shipley, the Board
had not deprived the petitioner of the opportunity to petition the
13
Court of Appeal or Supreme Court for judicial review. (Id. at
p. 1239–1240.)
Zurich was not swayed by the Board’s argument that
judicial review was a statutorily inadequate substitute for
reconsideration in that the Board and not the courts can take
additional evidence and make credibility findings. (Zurich,
supra, 97 Cal.App.5th at p. 1239, fn. 21.) Zurich surmised that
the Legislature must have been aware that judicial review was
more limited than reconsideration but nonetheless specified that
a petition for reconsideration is denied if the Board does not act
on it within 60 days. (Ibid.) Zurich also recognized that its
refusal to allow the Board to reconsider the award in that case
deprived the petitioner of judicial review, since the deadline to
file a petition for review in the courts had lapsed. (Id. at p. 1239
& fn. 22.) But Zurich said it was objectively unreasonable to
miss the readily calculable deadlines. (Id. at p. 1239, fn. 22.)
Zurich also pointed out that former section 5909 protected the
interests of parties opposing reconsideration, who had legitimate
interests in finality and expeditious proceedings. (Zurich, at
p. 1240.)
B. Board’s attacks on Zurich
For the reasons Zurich set forth at length, we agree with
Mayor that former section 5909 was mandatory and the Board
exceeded its jurisdiction in purporting to grant Ross Valley’s
petition after 60 days had passed since Ross Valley filed it. The
Board’s various attempts to avoid or defeat Zurich’s reasoning
are unpersuasive.
14
Propriety of Writ Relief
As it did in Zurich, the Board preliminarily argues that
this is not a proper case for writ relief. Section 5955 allows the
Courts of Appeal to issue a writ of mandate in “all proper cases,”
meaning all cases in which mandamus is available under Code of
Civil Procedure section 1085. (§ 5955; Greener v. Workers’ Comp.
Appeals Bd. (1993) 6 Cal.4th 1028, 1046.) “The writ must be
issued in all cases where there is not a plain, speedy, and
adequate remedy, in the ordinary course of law.” (Code Civ.
Proc., § 1086.) But “ ‘mandamus may not be available to compel
the exercise by a court or officer of the discretion possessed by
them in a particular manner, or to reach a particular result.’ ”
(State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (2016)
248 Cal.App.4th 349, 370.)
The Board complains that Mayor is seeking to compel it to
exercise its Shipley tolling in a particular manner. But the
Board’s grant of Ross Valley’s petition did not depend on any
exercise of discretion. The Board’s position, as stated in its
February 2024 order granting reconsideration and decision after
reconsideration, is that Ross Valley secured a right to
reconsideration merely by timely filing a petition, without
needing to satisfy any other factual requirements. As the Board
put it, Ross Valley’s “conduct is not and should not be at issue.”
The Board’s decision to grant Ross Valley’s petition was based on
its view of workers’ compensation litigants’ statutory and
constitutional rights, not a discretionary weighing of equitable
considerations.
15
The Board further argues that writ relief is premature
because its August 2023 order was not an order granting Ross
Valley’s petition for reconsideration or a final order determining
jurisdiction, but rather a non-final grant of reconsideration to
allow it to determine its jurisdiction. (See Abelleira v. District
Court of Appeal (1941) 17 Cal.2d 280, 303 [until a tribunal
“determines that it has jurisdiction and does some act in
consequence, there can be no injury to the party who denies its
jurisdiction” and “no interference is permitted until it does decide
the matter one way or the other”.) The Board’s August 2023
order belies this argument, since the title of the order is “Opinion
and Order Granting Petition for Reconsideration.” (Italics
added.) The Board’s February 2024 order is similarly titled,
“Opinion and Order Granting Petition for Reconsideration and
Decision After Reconsideration.” (Italics added.) In that order,
the Board not only asserted jurisdiction but proceeded to rule on
the merits. Writ relief is not premature.
Finally, the Board contends writ review is unnecessary
because Mayor has an adequate remedy in the ordinary course of
law in the form of judicial review after the further proceedings
called for in the Board’s February 2024 decision after
reconsideration. But as Zurich noted in rejecting the same
argument, Mayor’s argument is that former section 5909
protected his right to an expeditious end to workers’
compensation proceedings. That right would be meaningless if
Mayor were forced to wait to enforce it for months or years until
the conclusion of further proceedings. (Zurich, supra,
16
97 Cal.App.5th at p. 1226.) Moreover, the facts and legal
arguments surrounding this issue are fully developed. There is
nothing to be gained from delaying consideration of this issue
until after a WCJ or the Board issues yet another decision. (Cf.
Hikida v. Workers’ Comp. Appeals Bd. (2017) 12 Cal.App.5th
1249, 1255 [“courts have recognized that permitting early
appellate review to resolve certain ‘threshold issues’ may enhance
rather than detract from the expeditious resolution of workers’
compensation claims”].)
Distinguishing Zurich
The Board next seeks to minimize and distinguish Zurich,
emphasizing that Zurich did not hold that former section 5909
implicated the Board’s fundamental jurisdiction. The Board
argues that Zurich therefore is not inconsistent with Shipley’s
holding that equitable considerations can excuse a grant of a
petition for reconsideration after the former 60-day cutoff.5 The
Board asserts that Shipley was the only controlling authority on
point that it had to follow.
The Board’s description of Zurich is inaccurate and
incomplete. Zurich did decline to categorize violations of former
5 The Board briefly cites Rea v. Workers’ Comp. Appeals Bd.
(2005) 127 Cal.App.4th 625, 635, fn. 22, which cited Shipley for
the proposition that “[i]rregularity which deprives
reconsideration under the statutory scheme denies due process.”
However, Rea was discussing whether the Board could grant
reconsideration on its own motion even if a party had not timely
filed a petition for reconsideration. (Ibid.) It did not uphold a
grant of a petition for reconsideration after 60 days, so we need
not discuss it. We also need not discuss unpublished Court of
Appeal decisions that the Board cites.
17
section 5909 as depriving the Board of fundamental jurisdiction
or merely exceeding the Board’s jurisdiction, and it assumed that
Shipley correctly decided that equitable considerations could
avoid the running of the former section 5909 deadline. (Zurich,
supra, 97 Cal.App.5th at pp. 1236, fn. 17, 1238–1240.) But
Zurich explicitly “disagree[d] with the conclusion in Shipley that
a petitioner ha[d] a due process right to review by the Board of a
petition for reconsideration even after 60 days has passed.” (Id.
at p. 1237.) Zurich therefore rejected the Board’s position that
Shipley allowed it to extend the former section 5909 deadline
“any time the Board fail[ed] to act due to deficiencies in the
administrative process.” (Zurich, at p. 1237.) Zurich essentially
limited Shipley to its facts and read it as allowing equitable
tolling only when the Board misled a diligent petitioner into
missing the deadline for judicial review. (Id. at pp. 1238–1239 &
fns. 19, 22.) The Board here maintains the same view of Shipley
and due process that it advanced in Zurich, so the two cases
represent a split of authority and Zurich is not distinguishable.
The facts here are also like Zurich, not Shipley, since there is no
suggestion that the Board here misled Ross Valley into
disregarding the deadline for judicial review.6
6 Zurich noted that Shipley did not mention equitable
tolling or other equitable principles but did mention the
unfairness of denying the petitioner’s petition. (Zurich, supra,
97 Cal.App.5th at p. 1237, fn. 18.) Like Zurich, we question
whether Shipley can be read as a case giving the board discretion
to toll the former section 5909 deadline, rather than a case
requiring the board to disregard former section 5909 because of
due process. However, like Zurich we need not resolve the issue.
18
Statutory interpretation and practical
considerations
The Board offers several reasons why it believes Zurich
misconstrued former section 5909, its role in the workers’
compensation system, and the legislative history and intent
behind the relevant statutes. In brief, the Board contends that
former section 5909 was directory, the Legislature could not have
intended to cut off the Board’s ability to consider petitions for
reconsideration after 60 days, the Board lacked statutory
authority to use former section 5909 to deny petitions for
reconsideration, and judicial review is a statutorily inadequate
substitute for Board reconsideration. (See Kabran, supra,
2 Cal.5th at p. 340 [a requirement is directory “ ‘[i]f the failure to
comply with a particular procedural step does not invalidate the
action ultimately taken’ ”].) The Board further argues that the
practical consequence of treating former section 5909 as
mandatory will be a “time-consuming and expensive procedural
roundabout” in which a party whose petition for reconsideration
is deemed denied under former section 5909 files a petition for
review in the courts to have the case remanded to the Board for
consideration of the merits of the petition for reconsideration.
We need not address these arguments in detail, for two
independent reasons. First, the Board raised many of the same
arguments in Zurich, and Zurich already explained why those
Even if Shipley can be read as an equitable considerations case,
as the Board argues, the facts here are more like Zurich than
Shipley.
19
arguments have no merit. (Zurich, supra, 97 Cal.App.5th at
pp. 1230–1237.) We agree with Zurich’s reasoning. Second,
Assembly Bill 171 essentially ratified Zurich’s interpretation of
the governing statutes, thereby rejecting the Board’s statutory
interpretation arguments, and created a different rule for the
immediate future that should avoid the practical consequences
the Board fears.
Zurich was decided in December 2023. The Legislature
enacted Assembly Bill 171 about six months later, with the
Governor approving it on July 2, 2024. (Stats. 2024, ch. 52.) It
took effect immediately as a bill providing appropriations and
relating to the budget bill. (Stats. 2024, ch. 52, §30; see Cal
Const., art. IV, § 12(e)(1).) The temporal proximity indicates the
Legislature intended to respond to Zurich.
The nature of Assembly Bill 171’s response to Zurich is also
significant. When the California Supreme Court has not yet
finally interpreted a statute, the Legislature may amend statutes
to try to clarify their existing meaning without making any
substantive change. (McClung v. Employment Development Dept.
(2004) 34 Cal.4th 467, 473.) Although such attempts to declare
the existing meaning of a statute are not binding or conclusive on
future courts when construing the statute, the courts will
consider such enactments. (Ibid.)
Here, however, the Legislature did not try to clarify that
former section 5909 was not mandatory or that Zurich had
misconstrued the intent behind the relevant worker’s
compensation statutes. Instead, the Legislature simply changed
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the trigger for the running of the 60-day deadline to have it run
from the WCJ’s transmission of the case file to the Board. This is
a tacit acquiescence to Zurich’s interpretation of former section
5909’s rule as mandatory, since if the deadline was not
mandatory and the Board’s practice was permissible there would
have been no reason to alter the deadline.
Assembly Bill 171’s findings reinforce this interpretation.
Assembly Bill 171’s findings state that staffing emergencies at
the Department of Industrial Relations created challenges for the
enforcement of labor laws and the hiring emergency could not
“immediately and adequately be addressed through standard civil
service recruitment practices.” (Stats. 2024, ch. 52, § 1.) The
Board complained in Zurich and another recent case that it
needed additional resources to adequately respond to petitions for
reconsideration. (Zurich, supra, 97 Cal.App.5th at pp. 1224,
1239, fn. 20; Earley v. Workers’ Comp. Appeals Bd. (2023)
94 Cal.App.5th 1, 11 (Earley).) As Mayor argues, Assembly Bill
171’s findings therefore indicate that its amendment to former
section 5909 was connected to the Board’s complaints about
inadequate funding. The Legislature’s choice to make its change
to section 5909 temporary and have it expire on July 1, 2026,
corroborates this view of the amendment as a short-term fix to
the Board’s need for resources to meet former section 5909’s
deadline, not a repudiation of Zurich’s interpretation of the
nature of that deadline.
The committee and floor analyses of Assembly Bill 171’s
effects on former section 5909 confirm that the Legislature
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understood it was making substantive modifications to the law to
avoid Zurich’s effects, not disagreeing with Zurich’s analysis.
(See Sen. Com. on Budget and Fiscal Review, Rep. on Assem. Bill
171June 22, 2024, p. 1 [bill “modifies procedures by which the
appeals board must act on a petition for reconsideration”]; Sen.
Floor Analysis of Assem. Bill 171 June 26, 2024, p. 2 [same];
Assem. Floor Analysis of Assem. Bill 171June 26, 2024, p. 1
[“Existing law provides that . . . a petition for reconsideration is
automatically considered denied if the WCAB does not to [sic]
take action within 60 days from the date the petition was filed.”
The bill “would instead deem a petition for reconsideration to
have been denied by the WCAB unless it is acted upon by the
appeals board within 60 days from the date a trial judge
transmits a case to the appeals board”].)7 Additionally, nothing
7 We grant the Board’s request for judicial notice of the
statutory evolution of the workers’ compensation system,
including the legislative committee and Legislative Counsel
reports on the various bills that amended the relevant statutes.
None of these materials demonstrates any flaws in Zurich’s
conclusion that former section 5909 reflects and effectuates the
Legislature’s intent that the workers’ compensation system
achieve substantial justice expeditiously, especially in light of the
Legislature’s acquiescence in that interpretation. We deny the
Board’s request for judicial notice of the remaining materials
attached to its request, such as various letters and memoranda
urging the Governor to sign or veto those bills, letters to
individual legislators, the Governor’s press release when signing
a bill, or news articles about a bill. Those documents do not
constitute proper legislative history materials because there is no
indication they were communicated to the Legislature as a whole.
(See Kaufman & Broad Communities, Inc. v. Performance
Plastering, Inc. (2005) 133 Cal.App.4th 26, 37–39.)
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in the text or history of Assembly Bill 171 suggests the
Legislature intended the amended statute to cure lapses of the
deadline retroactively, assuming that is even permissible. (See
Elsner v. Uveges (2004) 34 Cal.4th 915, 936 [“New statutes are
presumed to operate only prospectively absent some clear
indication that the Legislature intended otherwise”].) Zurich’s
interpretation of former section 5909 therefore governs this case.
For future cases, the new trigger for the deadline gives the
Board the additional time to act on petitions review that it says it
needs to resolve normal human errors or administrative
irregularities. (Zurich, supra, 97 Cal.App.5th at pp. 1224–1225.)
The Board’s concerns about the implications of Zurich’s reasoning
and the need for procedural workarounds to resolve complications
it creates are therefore groundless, to the extent they ever had
any validity. The changes to former section 5909 are currently
set to expire in July 2026, but the Legislature’s prompt response
to the Board’s concerns should reassure the Board that the
Legislature will continue to monitor the issue and address it
again if it persists.
Due process
The Board also seeks to rebut Zurich’s analysis of former
section 5909 by noting that as a court it is bound by the state and
federal constitutions to provide due process. The Board asserts
that parties have a due process right to a ruling by the Board on
the merits of a petition for reconsideration. Though it does not
say so in so many words, the upshot of this argument is that
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former section 5909’s “deemed to have been denied” provision is
unconstitutional as Zurich interpreted it.
The Board relies on Shipley, supra, 7 Cal.App.4th at page
1107, which stated that former section 5909’s deadline “must be
based on a presumption that a claimant’s file will be available to
the board; any other result deprives a claimant of due process
and the right to a review by the board.” The Board insists that it
would violate due process for a litigant’s petition for
reconsideration to be denied without the Board even considering
it. As it did in Zurich, the Board finally complains that judicial
review is not a constitutionally adequate substitute for
reconsideration by the Board, since the scope of judicial review is
more limited than the complete reconsideration the Board can
provide.
It would certainly be preferable for the Board to bring its
expertise to bear on every litigant’s case, with no exceptions.
However, like Shipley, the Board fails to reckon with the fact that
the workers’ compensation system is intended to provide
substantial justice quickly and expeditiously, not duplicate the
formality of the courts. (Zurich, supra, 97 Cal.App.5th at
pp. 1232–1234; see §§ 5708 [the Board and WCJs “shall not be
bound by the common law or statutory rules of evidence and
procedure, but may make inquiry in the manner, through oral
testimony and records, which is best calculated to ascertain the
substantial rights of the parties and carry out justly the spirit
and provisions of this division”], 5709 [“No informality in any
proceeding or in the manner of taking testimony shall invalidate
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any order, decision, award, or rule made and filed as specified in
this division”].) Nor did Shipley consider, as Zurich did, the
interest of the opposing party in avoiding protracted proceedings.
(Zurich, at p. 1240.) Given the goal of average or substantial, but
expeditious, justice in workers’ compensation proceedings,
opposing parties need not subordinate their rights to prompt
resolution of disputes to accommodate open-ended delays that the
Board claims are necessary for it to rule on petitions for
reconsideration. As the Board itself notes, “reconsideration
fulfills substantially the same function as the new trial in civil
proceedings.” (United States Pipe & Foundry Co. v. Industrial
Acc. Commission (1962) 201 Cal.App.2d 545, 549.) Due process
does not prevent the Legislature from prioritizing the expeditious
resolution of workers’ compensation proceedings and opposing
parties’ interest in finality, with the possibility of limited judicial
review, over what amounts to a request for a new trial and more
extensive factual reconsideration by the Board.
Reliance interests
The Board protests that Zurich’s order that the petition for
reconsideration be deemed denied by operation of law was
“draconian” and “drastic” because the Board had relied on
Shipley to toll the former section 5909 deadline for over 30 years.
The Board similarly urges us to respect the workers’
compensation community’s reliance on Shipley and uphold the
Board’s practice of indefinitely tolling the former section 5909
deadline to avoid depriving parties of reconsideration by the
Board. But as another court recently remarked about the Board’s
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reconsideration practices, “a long-standing and incorrect
procedure remains incorrect.” (Earley, supra, 94 Cal.App.5th at
p. 11.) We cannot ignore former section 5909 and follow Shipley
here merely because it has been followed in the past.8
DISPOSITION
The petition is granted. A peremptory writ of mandate
shall issue directing the Board to rescind its orders granting Ross
Valley’s petition for reconsideration and its January 26 and
February 2, 2024, opinions and decisions after reconsideration.
Because Ross Valley’s petition for reconsideration was denied by
operation of law under former section 5909 on May 22, 2023, the
WCJ’s award of permanent disability and attorney’s fees issued
on March 2, 2023, is now final.
BROWN, P. J.
WE CONCUR:
STREETER, J.
GOLDMAN, J.
Mayor v. WCAB (A169465)
8 Because we grant Mayor’s writ petition based on former
section 5909, we need not address his alternative argument that
the board’s August 2023 grant of reconsideration violated section
5908.5 and Earley, supra, 94 Cal.App.5th at pages 10–12 by
granting reconsideration for the purposes of further study
without explaining why the case warranted further study and
identifying the evidence supporting its decision.
26
Trial court: Workers’ Compensation Appeals Board
Counsel for Petitioner: SHOEMAKER LAW OFFICES
Elizabeth Hudson
Counsel for and Respondents: WORKERS’ COMPENSATION
APPEALS BOARD
Anne Schmitz
Allison Fairchild
27